Inst. For Energy Research v. Fed. Energy Regulatory Comm'n

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INSTITUTE FOR ENERGY RESEARCH, Plaintiff, v. FEDERAL ENERGY REGULATORY COMMISSION, Defendant.

Civil Action No. 22-3420 (BAH)

United States District Court, District of Columbia

February 12, 2024

MEMORANDUM OPINION

BERYL A. HOWELL UNITED STATES DISTRICT JUDGE

Plaintiff Institute for Energy Research, a “non-profit public policy institute” that runs “a transparency initiative seeking public records relating to environmental and energy policy and how policymakers use public resources,” Compl. ¶ 3, ECF No. 1, challenges the response of defendant Federal Energy Regulatory Commission (“FERC”) to two requests submitted pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C § 552, for calendars kept by or for two FERC commissioners, and phone bills reflecting inbound and outbound calls made and received by four FERC officials Compl. ¶¶ 11, 21. Specifically, plaintiff alleges that FERC has not fulfilled its obligation under FOIA “to produce the records responsive to the FOIA requests,” Compl. ¶ 46, by inadequately searching for responsive records and improperly withholding information pursuant to Exemptions 5 and 6, Pl.'s Opp'n Def.'s Mot. Summ. J. (“Pl.'s Opp'n”) at 1, ECF No. 20.

Pending before the Court is FERC's motion for summary judgment. Def.'s Mot. Summ. J. (“Def.'s Mot.”), ECF No. 19; Def.'s Mot., Def.'s Mem. Supp. Mot. Summ. J (“Def.'s Mem.”), ECF No. 19-1; Def.'s Reply Supp. Mot. Summ. J. (“Def.'s Reply”) ECF No. 22. For the reasons set forth below, the motion is granted in part and denied in part. Specifically, FERC is granted summary judgment with respect to the adequacy of its search and its Exemption 5 redactions, as well as all Exemption 6 redactions, except as to the name of the lobbyist who had lunch with Chairman Glick at 12:30 p.m. on May 5, 2022, which FERC concedes, in a comment bubble, “should definitely not have [been] withheld.” Def.'s Errata Concerning Reply Mem. Supp. Summ. J., Ex. A, at 14, ECF No. 23-1.

I. BACKGROUND

Plaintiff's FOIA requests, FERC's responses to the requests, and FERC's supplemental productions during the pendency of this action are briefly described below.

A. The FOIA Request for Calendar Records

On June 13, 2022, plaintiff submitted a FOIA request seeking copies of all calendars kept by or for FERC Commissioner and Chairman Richard Glick and Commissioner Allison Clements (the “Commissioners”) from April 19, 2022, to June 10, 2022 (“Calendar FOIA Request”). Pl.'s Opp'n, Pl.'s Statement of Material Facts Not in Genuine Dispute (“Pl.'s SMF”) ¶¶ 1-2, ECF No. 20-1; see also Def.'s Mot., Def.'s Statement of Material Facts Not in Genuine Dispute (“Def.'s SMF”) ¶¶ 1-2. FERC acknowledged receipt of the FOIA request on the same day. Pl.'s SMF ¶ 3.

FERC then began its search for responsive records. According to the Director of Strategic Operations and Special Projects in FERC's Office of External Affairs (“OEA”), which oversees the processing of FOIA requests, FERC takes a “first-in, first-out” approach to processing FOIA requests and employs three full-time employees dedicated to processing such requests. Def.'s Mot., Decl. of Carolyn Templeton (“Templeton Decl.”) ¶¶ 3-4, ECF No. 19-3; see also Def.'s SMF ¶ 7. Upon receipt of the Calendar FOIA Request, FERC IT staff searched FERC's filing system and located one Microsoft Outlook calendar for Chairman Glick and one for Commissioner Clements. Templeton Decl. ¶ 9. FERC staff confirmed that the Commissioners each utilize one calendar that their staff “have the ability to input information into” and that “no other calendars exist.” Id. On July 28, 2022, FERC released the two calendars to plaintiff, with redactions to both pursuant to FOIA Exemptions 5 and 6. Id. ¶ 11.

Plaintiff filed a timely administrative appeal, challenging the adequacy of the search and the redactions pursuant to Exemptions 5 and 6, and FERC's General Counsel upheld the adequacy of FERC's search and the application of both exemptions. Id. ¶¶ 12-13.

B. The FOIA Request for Call Logs

On June 14, 2022, plaintiff submitted a second FOIA request seeking copies of “all bills for or covering mobile phones/devices issued to” or “other records reflecting inbound and outbound calls made and received” by “the following individuals for the stated periods”: Chairman Glick from November 8, 2020, to June 14, 2022; Commissioner Clements from December 8, 2020, to June 14, 2022; Sarah Venuto from FERC's Office of External Affairs from April 1, 2021, to June 14, 2022; and Elin Katz, Director of FERC's Office of Public Participation from October 1, 2021, to June 14, 2022 (“Call Log FOIA Request”). Pl.'s SMF ¶ 5; Def.'s SMF ¶ 5. FERC acknowledged receipt of the FOIA request on the same day. Pl.'s SMF ¶ 6.

Upon receipt of the Call Log FOIA Request, FERC's Office of the Chief Information Officer (“CIO”) and the Contracting Officer Representative of the Verizon Wireless Account began their search of the responsive records. Pl.'s SMF ¶ 11; Def.'s SMF ¶ 11. The CIO “maintains a monthly record of the cellular phone invoices for official agency cell phones” and has established the following process for responding to FOIA requests:

(a) Identify the individuals that are named in the FOIA request; (b) Determine if the individuals have FERC issued cellular phones; (c) Identify the time periods required for the records on the FOIA request; (d) Pull the required records based on required dates from the FERC network; (e) If record is missing, request record from Verizon; (f) Pull each detailed phone record for each named individual for the time period required; and (g) Send files to CIO FOIA contact for distribution.

Pl.'s SMF ¶ 12; Def.'s SMF ¶ 12. As a result of the search, FERC determined that only Chairman Glick, Commissioner Clements, and Director Venuto possessed phones issued by FERC. Def.'s SMF ¶ 13.

On July 28, 2022, FERC made a first production to plaintiff of three responsive records, containing redactions pursuant to Exemption 6. Pl.'s SMF ¶ 14; Def.'s SMF ¶ 14. Plaintiff filed a timely administrative appeal on the interim production, challenging the redactions pursuant to Exemption 6, and FERC's General Counsel upheld the application of both exemptions. Templeton Decl. ¶¶ 17-19. On November 8, 2022, while this action was pending, FERC produced the remaining responsive records, which contained redactions pursuant to Exemption 6. Id. ¶ 20; see also Pl.'s SMF ¶ 15; Def.'s SMF ¶ 15. On March 1, 2023, when preparing the Vaughn Index in connection with this matter, FERC noticed that one attachment, containing call logs for Director Venuto, had been inadvertently omitted from the November 8, 2022, production and promptly produced this record. Pl.'s SMF ¶ 16; Def.'s SMF ¶ 16; Templeton Decl. ¶ 21.

C. Procedural History

On September 12, 2022, plaintiff filed, in the Southern District of Texas, the instant FOIA action, alleging that FERC “fail[ed] to search for, process or produce certain responsive information . . . in violation of Defendant's lawful obligations” and seeking declaratory and injunctive relief against FERC. Compl. ¶ 2. With the parties' consent, the case was transferred to this Court on November 8, 2022. See Case Transferred, ECF No. 11; Order to Transfer Case, ECF No. 10; Def.'s Mot. to Transfer Case, ECF No. 8; Pl.'s Notice of Consent to Transfer, ECF No. 9. The parties soon apprised the Court that they tried and failed to resolve their disputes, see Joint Status Reps., ECF Nos. 14, 15, 18, and a scheduling order was entered in accord with the parties' proposal, see Min. Order (Feb. 1, 2023). Consistent with this scheduling order, FERC moved for summary judgment, and plaintiff filed no dispositive motion.

On January 8, 2024, while the instant summary judgment motion was pending, FERC informed the Court that previously redacted material in almost forty places throughout the Commissioners' calendars were released on December 15, 2023. See Def.'s Notice of Suppl. Release (“Def.'s Notice”) at 1-2, ECF No. 24.^[1] The withholdings in these almost forty locations are thus “no longer at issue in this litigation.” Id. at 2. Accordingly, as to the Calendar FOIA Request, only three Exemption 5 redactions remain, all on Chairman Glick's calendar: (1) April 25 at 3:30 p.m.; (2) May 25 at 10:30 a.m.; and (3) May 26 at 2:00 p.m. Id. In addition, whereas FERC had originally redacted, pursuant to Exemption 6, five categories of information on the responsive calendar records, only the following four categories of redactions remain after FERC's release of “the names of lower-level staff”: (1) personal events, such as gym trips and days children have off school; (2) travel information; (3) dial-in numbers or passcodes; and (4) names of interviewees. See id.; Def.'s Reply, Second Decl. of Carolyn Templeton (“2d Templeton Decl.”) ¶¶ 6-7, ECF No. 22-1. As discussed below, these remaining disputed issues are resolved in this Memorandum Opinion.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, “[a] party is entitled to summary judgment only if there is no genuine issue of material fact and judgment in the movant's favor is proper as a matter of law.” Soundboard Ass'n v Fed. Trade Comm'n, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (citation omitted); see also Fed.R.Civ.P. 56(a). In FOIA cases, “courts must grant summary judgment for an agency if its affidavit: (1) describes the justifications for nondisclosure with ‘reasonably specific detail'; and (2) is not substantially called into question by contrary record evidence or evidence of agency bad faith.” Schaerr v. Dep't of Justice, 69 F.4th 924, 929 (D.C. Cir. 2023) (quoting Wolf v. Cent. Intel. Agency, 473 F.3d 370, 374 (D.C. Cir. 2007)); see also Aguiar v. Drug Enf't Admin., 865 F.3d 730, 734-35 (D.C. Cir. 20...